Bangalore District Court
Rathnam Anand vs The Iti House Building Co Operative ... on 1 April, 2024
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O.S.No. 5265/ 2017
KABC010189992017
In the Court of the XXIV Additional City Civil and Sessions Judge
(CCH-6) at Bengaluru
Dated this the 1st day of April, 2024.
Present:
Kum Sindhu Potadar, B.A.,LL.B., (Hons), LL.M,
XXIV Addl. City Civil & Sessions Judge (CCH-6), Bengaluru.
Original Suit No. 5265 of 2017
PLAINTIFF: Sri Rathnam Ananda,
Since dead by Lrs,
a) Smt. R.Manjula,
D/o late Rathnam @ Rathnappa,
Aged about 62 years,
R/at No.46, 1st cross,
Jayanthinagar Extension,
Horamavu, Bangalore-43.
b) Miss. R.Shantha,
D/o late Rathnam,
Aged about 57 years,
R/at No.439, 3rd Cross,
Wilsongarden,
Bangalore-560 027
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O.S.No. 5265/ 2017
c) Smt. Radha.K,
W/o R.Krishna,
Aged about 57 years,
d) Smt.Rekha.K,
D/o R.Krishna,
Aged about 40 years,
e) Sri.Chandrashekar.K,
S/o R.Krishna,
Aged about 38 years,
f) Savitha,
D/o R.Krishna,
Aged about 35 years,
Plaintiffs Nos.1(c) to (f) are
r/at No.439, 3rd Cross,
Wilson Garden,
Bengaluru-560 027
(By N.S.V Law Inc, Advocates)
.Vs.
DEFENDANTS: 1. The I.T.I HOUSE BUILDING CO-
OPERATIVE SOCIETY LTD.,
Represented by its Secretary,
Situated at Dooravani Nagar,
Bangalore-560 016
2. Sri G.Manjunath,
S/o late Gundappa,
Aged about 40 years,
Residing behind Ganesha Temple,
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O.S.No. 5265/ 2017
Nayandanahalli village,
Kengeri Hobli,
Bangalore South Taluk.
(By Sri K.S for D.1,
Sri M.T.A for D.2, Advocates)
Date of institution of the suit: 02.08.2017
Nature of the suit: For Declaration
Date of commencement of 24.11.2017
recording of evidence:
Date on which Judgment was 01.04.2024
pronounced:
Duration Year/s Month/s Day/s
06 07 29
JUDGMENT
This is a suit filed by the original plaintiff against the defendants for declaring that he is the absolute owner of the schedule 'B' property and for mandatory injunction directing defendants No.2 to demolish the construction on the schedule 'B' property and handed over the possession of the 4 O.S.No. 5265/ 2017 schedule 'B' property to the plaintiff, if they failed to do so, this Court demolish the construction on the schedule 'B' property and put the plaintiff in the possession of the schedule 'B' property at the costs of the defendant No.2 and for permanent injunction restraining defendant No.2, his agents, henchmen, assignee or anybody claiming under him from interfering with peaceful possession of plaintiffs 'A' schedule property and further restraining defendant No.2 from crating, encumbering and to create any third party rights in respect of schedule 'A' property by way of permanent injunction and for mesne profits to the plaintiff for having wrongful possession of schedule 'B' property and for other reliefs.
The plaint schedule properties are as follows:
Schedule 'A' Property: All that piece and parcel of the property bearing site No.223, having BBMP PID No. 39- 202-223, formed in Sy.Nos.58, 56, 55/3, 63/1, 54, 57/2, 57/3, 57/4, 57/5, 57/6, 57/7, 57/11, 57/12, 57/13, 57/14, 57/15, 57/16, 57/17, 60, 61/1, 61/2, 63/1, 63/2, 22, 23, 24, 26, 27 and 28, 26/1B, 26/1A and 26/2B, situated at ITI HSBS Layout, Nayandanahalli Kengeri Hobli, Bangalore South Taluk measuring east to west 40 feet and north to south 30 feet in all measuring 1200 square feet and bounded on:5
O.S.No. 5265/ 2017 East by : Road West y : Site bearing No.204, North by : Site bearing No.222 and private property South by : Site bearing No.224 Schedule 'B' property: All that piece and parcel of northern portion of schedule 'A' property measuring north, west 09 feet and north east 11 feet on the northern side approximately measuring 400 square feet.
2. Plaint avernments are as follows:
The deceased plaintiff is the absolute owner of the suit schedule 'A' property more-fully described in schedule and in possession of the same. He was working as Employee in Indian Telephone Industry Limited (I.T.I) and he was became the member of I.T.I Employees Housing Co-operative Society/ 1st defendant herein. Defendant No.1 being the Co-operative Society had given representation to the Government of Karnataka for allocation of land for formation of residential layout for its employees/ members having considered the representation, the Government has issued Preliminary Notification under Sec 4(1) of the Land Acquisition Act, bearing Notification No. LAQ(1) CR No.681/1983-84 dt. 22.02.1985 in respect of suit 6 O.S.No. 5265/ 2017 schedule properties for formation of residential layout for the I.T.I Employees Housing Co-operative Society Ltd. After considering the objections from the land owners, the Government has issued Final Notification U/s.6 of the Act on 27.02.1986. Accordingly the Government of Karnataka has passed the Award by depositing the compensation amount of Rs.19,31,462/- and later it enhanced into Rs.65,17,799/- only for having acquired the lands mentioned in schedule 'A' property.
3. Further averred that, having acquired the above said lands, the Government of Karnataka handed over the possession of an extent of 31 acres 38 guntas of land except the industrial area and regional park, acquired in Nayannadanahalli village, Kengeri Hobli, to the I.T.I Housing Co- operative Society Ltd., defendant No.1 herein and again on 21.07.1992 the Special Land Acquisition Officer has issued Notification U/s. 16(2) of the Land Acquisition Act 1894, confirming that the lands bearing Sy.No.26/1B, 26/1A, 26/2B, 55/3, 57/5, 57/6, 57/7, 58, 61/1, 63/2 totally measuring 09 acres 33 guntas have been acquired on behalf of I.T.I Housing Co-operative Society Ltd., for the purpose of formation of residential layout. After securing 7 O.S.No. 5265/ 2017 possession of the above said lands, defendant No.1 has formed the layout with approval from the Bangalore Development Authority and having formed the layout and defendant No.1 has allotted sites to its members and accordingly the sale deeds were executed in favour of its members in respect of sites formed in the above said lands. Defendant No.1 before approval from the B.D.A has allotted several sites to its members, but some of the sites were formed in the lands, which were not given to the Society upon the verification by the B.D.A the same was came to know and after the B.D.A has verified an revised the layout plan with respect to the lands given to the defendant No.1 society, the sites which were restored in the revised plan are only available for the first defendant Society members, the same can be noticed from the revised plan approved by the B.D.A.
4. Further averred that, plaintiff being a member of the first defendant Society was allotted site bearing No.223 formed layout by the 1 st defendant in above survey numbers and he was paid premium to the Society and accordingly, defendant No.1 Society executed the sale deed dt. 12.05.1995 in favour of plaintiff herein and under the sale deed the plaintiff 8 O.S.No. 5265/ 2017 has paid Rs.30,000/- to the 1st defendant Society and the first defendant Society has issued the possession certificate also in favour of the plaintiff. Having acquired the possession of the schedule property, under the sale deed dt. 12.05.1995 and as well as possession certificate, the B.D.A has issued the Khata certificate, in respect of schedule property in favour of plaintiff and now the schedule property comes under the limits of B.B.M.P and B.B.M.P has issued Khata certificate and Khata extract and paid up to date tax. Since the plaintiff is residing at Wilson-garden, Bangalore and he was visiting schedule property twice or thrice in a month and keep watching the schedule property to avoid any trespass from the third parties. Such being the case, on 10.07.2017 when the plaintiff visited the schedule property he noticed that his adjoining site owner Sri.M.Gopalappa was surveying his site and plaintiff also decided to survey the property and according surveyed the property. It was shocked that defendant No.2 encroached the portion of the property i.e., schedule 'B' property on the northern side of the schedule property by constructing the temporary shed, it's measures north west 09 feet and north to east 11 feet, totally 400 square feet. When it was questioned, defendant No.2 evaded the plaintiff and 9 O.S.No. 5265/ 2017 claimed that there is no property of the plaintiff and the construction area is belongs to him and it is his joint family property. Hence there is no other alternative the plaintiff moved to the local jurisdictional police to complain the same, but police have refused to take action and advised to approach the Civil Court for proper remedy. Hence plaintiff constrained to file this suit.
5. Plaintiff further averred that, so far as defendant No.2 is concerned, he is nothing to do with the schedule property or adjacent to the schedule property, first defendant Society was formed the layout on the land situated towards northern side of property and later on as per revised layout plan the sites formed on the northern side of the property were dropped due to litigation between third parties and Society, therefore the lands marked as C,D,E,F and G,H,I,J in revised layout plan and the sites were formed in demarcation of A,B,C,D and E,F,G,H are confirmed and those sites were formed in Sy.No.63/2 measuring 2 acres 11 guntas. Therefore the defendant No.2 has no right over the schedule properties. Since the plaintiff is a retired Employee and Senior citizen taking advantage of his age defendant No.2 is now making hectic efforts to dispossess the plaintiff from the properties and 10 O.S.No. 5265/ 2017 trying to forcible possession of the schedule 'A' property. The cause of action arose for the suit on 10.07.2017, when plaintiff came to know about the encroaching of defendant No.2 on suit schedule 'B' property. Hence prays to decree the suit.
6. After service of summons, defendants Nos.1 and 2 have appeared through their respective counsels, but did not filed written statement inspite of sufficient opportunities. Hence posted the case for plaintiffs evidence.
7. The following points that arises for my consideration:-
1) Whether the plaintiff proves proves that he is the absolute owner of 'A' schedule property?
2) Whether the plaintiff further proves that 'B' schedule property is part of 'A' schedule property as such he is the absolute owner of suit schedule 'B' property?
3) whether the plaintiff further proves that defendant No.2 has encroached his 'B' schedule property?
4) Whether the plaintiff further proves that he is entitled for relief of mandatory injunction with a direction to 11 O.S.No. 5265/ 2017 defendant No.2 to remove illegal construction of 'B' schedule property?
5) Whether the plaintiff further proves that he is entitled for vacant possession of 'B' schedule property?
6) Whether the plaintiff proves that there is necessity for enquiry into mesne profits?
7) Whether the plaintiff is entitled for the relief of permanent injunction?
8) Whether the plaintiff is entitled for the relief as sought for?
9). What order or decree?
8. To prove plaintiff's case, original plaintiff himself examined as Pw.1 and got marked 22 documents as per Ex.P.1 to Ex.P.22. As she died during the pendency her evidence was discarded on 31.05.2023 and plaintiff No.1(e) her legal heir is examined as Pw.2 and got marked Ex.P.1 to Ex.P.31 and closed their side of evidence.
In spite of many dates of hearing, defendant did not chosen to adduce evidence. Hence evidence of defendants is taken as Nil and posted the case for arguments.
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O.S.No. 5265/ 2017
9. Heard arguments. Perused the records.
10. My answer to the above points are as follows:-
Point No.1 : In Affirmative
Point No.2 : In Negative
Point No.3 : In Negative
Point No.4 : In Negative
Point No.5 : In Negative
Point No.6 : In Negative
Point No.7 : In Negative
Point No.8 : In Negative
Point No.9 : As per final order, for the following:
REASONS
Point No.1:-
11. The plaintiff claiming to be an absolute owner in possession of suit schedule 'A' property under the sale deed dt.12.5.1995. He contends that the said property originally measuring 40 x 30 feet. When he visited the same on 10.07.2017 he noticed that defendant No.2 has encroached portion of his property on the northern side of schedule property by constructing temporary shed measuring north to west 9 feet and north east 11 feet totally 400 square feet i.e., 'B' schedule property. Hence seeking for the above relief.
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O.S.No. 5265/ 2017
12. In order to prove these contentions, plaintiff No.1(e) examined as Pw.1 and got marked Ex.P.1 to Ex.P.31. Ex.P.1 is sale deed dt. 12.5.1993 executed in favour of deceased plaintiff by defendant No.1 herein Society under the registered sale deed for consideration of Rs.30,000/-. The schedule property corroborates with the suit schedule 'A' property. Ex.P.2 is a possession certificate issued by defendant No.1 in favour of plaintiff with respect to suit schedule property. Ex.P.3 is No objection certificate given by defendant No.1 Society for the purpose of construction or raising loan or any encumbrance. Ex.P.4 is the Khata certificate standing in the name of deceased plaintiff. Ex.P.5 is B.D.A Challan dt. 01.10.2000 for remitting the property tax. Ex.P.6 and Ex.P.7 are the Khata certificate and extract with respect to suit schedule 'A' property measuring 1200 square feet. Ex.P.8 is a tax paid receipt, Ex.P.9 to Ex.P.21 are the photographs and CD with respect to suit schedule property which discloses that the portion is vacant site and there is a shed constructed. Ex.P.22 is a Gazette Notification dt. 25.02.1985 for the purpose of acquisition of various lands as alleged in para- 5 of the plaint. Ex.P.23 is final Notification dt. 28.02.1986 acquired in the lands, Ex.P.24 is details of the award paid for the acquisition referred above, 14 O.S.No. 5265/ 2017 Ex.P.25 is official memorandum dt. 13.12.1992, handing over possession to the extent of 31 acres 38 guntas in favour of defendant No.1 herein. Ex.P.26 and Ex.P.27 are the rough sketch, Ex.P.28 and Ex.P.29 are Judgment and decree in O.S.No.5390 of 2007 filed against the defendant No.1 herein for the relief of permanent injunction which came to be dismissed vide order dt. 03.12.2012. Ex.P.30 is Bye-laws of defendant No.1's Society, Ex.P.31 is Notification dt. 21.07.1992 informing that the acquisition is made in favour of defendant No.1 herein. Witness is not cross-examined by the defendants as they are placed ex-parte.
13. The title documents like the sale deeds, possession certificate, Katha certificates and Khata extract which are the registered documents prima-facie presumption in favour of the same is raised. When the documents disclose that in the year 1995 itself the property has been sold for consideration to original plaintiff herein and the revenue documents also stands in his name the ownership is established. The defendant has appeared but not filed any written statement or cross-examined Pw.1 to rebut the same. Hence the said facts remained unchallenged and 15 O.S.No. 5265/ 2017 undisputed. These documents clearly establishes the title of the plaintiff. Hence point No.1 is answered in the Affirmative.
Point Nos.2 to 6:- All these points are taken together for discussions, in order to avoid repetition of facts.
14. The mandatory injunction is to be granted only to restore status- quo as it was existing prior to the suit. It is a discretionary relief. For grant of said relief there must be an obligation to be performed by the other side and the said obligation must be clear and not vague. The mandatory injunction cannot be granted to a person where there is no allegation, assertion or proof as to the right and obligation. The Mandatory Injunction is giving an opportunity to the trespasser to remove the structure put by him on the land of the plaintiff.
15. Prima-facie burden is on the plaintiff that the defendant is having an obligation towards him and the defendant is a trespasser on the land which is alleged to be in possession of the plaintiff. Even though the plaintiff contends that 'B' schedule property measuring north to west 9 feet and north 16 O.S.No. 5265/ 2017 east 11 feet on the northern side approximately 400 square feet is encroached by defendant, except producing the photographs and revenue records no other documents showing the exact measurement of the property is produced. The other documents are the Notifications pertaining to acquisition which are not helpful for the plaintiff. The plaintiff has produced the sanctioned plan, but has failed to explain how the alleged encroachment is made by the defendant on the northern side. The said layout plan only discloses forming of the modified layout plan from various survey numbers of Nayandanahalli, Kengeri Hobli. Ex.P.26 and Ex.P.27 only discloses formation of the layouts and carving out of sites, but the same do not in any way come to the aid of plaintiff to show the exact encroachment as alleged by the plaintiff.
16. When the plaintiff prays for mandatory injunction he has to make out the exact measurement of the encroachment by all the necessary details with accurate measurements. But none of the documents are produced in support of his contention in the plaint as to the alleged encroachment. He has not even made any efforts to show the present measurement of the suit 17 O.S.No. 5265/ 2017 schedule property and how on the northern side the alleged 400 square feet is encroached by defendant No.2. In the absence of cogent documents and evidence the plaintiff has miserably failed to prove that the 'B' schedule property is part of A' schedule property and the 'B' schedule property is encroached by defendant No.2. The plaintiff has not even made any efforts to get the Commissioner appointed for the purpose of measurement of the property existing after alleged encroachment by defendant No.2. Further, the alleged encroachment of 400 square feet should have been made out by the plaintiff. The plaintiff alleges that there is a illegal construction on 'B' schedule property, but has not produced any document even to prove the said illegal construction by cogent materials. Hence the plaintiff is not entitled for mandatory injunction as such these points are answered in the Negative.
Point Nos.7 and 8:- Both these points are taken together for discussions, in order to avoid repetition of facts.
17. Even though the plaintiff has established to be the owner of 'A' schedule property but failed to prove that he is owner of 'B' schedule 18 O.S.No. 5265/ 2017 property which is part of 'A' schedule property. Already prayer for mandatory injunction and vacant possession are answered in the negative. The plaintiff has sought for declaration of his ownership with respect to 'B schedule property and for permanent injunction, he has failed to establish his ownership or possession over the said property at any point of time. Hence, he is not entitled for the relief sough for. As such these points are answered in the Negative.
Point No.9 :-
18. In view of aforesaid answers to points, I proceed to pass the following:
ORDER Suit filed by plaintiffs is hereby dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-1 directly on Computer, typed by her and then computerised print taken, corrected, signed and pronounced by me in the open Court on this the 1st day of April, 2024) (SINDHU POTADAR) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.19
O.S.No. 5265/ 2017 ANNEXURE List of witnesses examined for the plaintiff:
PW. 1 Sri Rathnam Ananda
Pw.2 Smt.R.Manjula
List of documents marked for the plaintiff:
Ex.P. 1 Sale deed dt. 12.05.1995
Ex.P.2 Possession Certificate dt. 19.07.1995
Ex.P.3 NOC dt. 06.02.2003
Ex.P.4 Khata certificate dt. 5.12.2000
Ex.P.5 BDA Challan dt. 01.10.2000
Ex.P.6, P.7 Khata certificate and extract
Ex.P.8 Tax paid receipt
Ex.P.9 Photographs with CD
to
Ex.P.21
Ex.P.22 Gazette Notification dt. 25.2.1985
Ex.P.23 Final Notification dt. 28.02.1986
Ex.P.24 Details of award paid for acquisition
Ex.P.25 Official Memorandum dt.13.12.1992
Ex.P.26, P.27 Rough sketch
Ex.P.28, P.29 Judgment and decree in O.S.5390/2007
Ex.P.30 Bye-laws of Society
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O.S.No. 5265/ 2017
Ex.P.31 Notification dt. 21.07.1992
List of witnesses and documents on behalf of defendants side:
- NIL-
(SINDHU POTADAR) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
21 O.S.No. 5265/ 2017